Punjab-Haryana High Court
Kirpal Singh (Deceased By L.R.'S) And ... vs Aas Kaur And Others on 2 August, 1996
Equivalent citations: AIR1997P&H240, (1997)115PLR468, AIR 1997 PUNJAB AND HARYANA 240, (1997) 1 HINDULR 683, (1997) 115 PUN LR 468, (1997) 1 LJR 585, (1997) 1 CIVILCOURTC 252, (1997) 2 CIVLJ 700, (1997) 3 ICC 246
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT
1. By this judgment I dispose of two Regular Second Appeals Nos. 78 and 79 of 1978 filed by unsuccessful plaintiffs Sarvshri Kirpal Singh and Rachpal Singh and both the appeals have been directed against the judgment and decree dated 25-10-1982 passed by the Court of Additional District Judge, Gurdaspur, who accepted two Civil Appeals filed by the two sets of defendants and set aside the judgment and decree of the Additional Senior Sub-Judge (trial Court), Gurdaspur, dated 30-9-1981, who decreed the suit of the plaintiffs for declaration to the effect that they are the owners of the suit land as prayed for.
2. The pleadings of the parties can be summarised in the following manner :--
The plaintiffs in the trial Court Sarvshri Kirpal Singh and Rachhpat Singh sons of Fauja Singh filed a suit for declaration against Aas Kaur widow of Jagat Singh, Ajit Singh, Baldev Singh (both sons of Jagat Singh), Kartar Singh, Nath Singh both sons of Sunder Singh) Puro, Kanto, Mindo (daughters of Tara Singh), Chur Singh Gurmit, Singh, Chindo wife of Randhir Singh, Dalip Singh, Makhan Singh, Jit Singh and Bakhshish Singh (defendants) to the effect that they are the owners of the land measuring 215. Kanals 12 Marias shown in the head note of the plaint situated in village Shur, Tehsil and District Gurdaspur and the case set up by the plaintiffs was that Kharak Singh and Bhagtu sons of Wazira were the owners of the suit land and they during their life-time executeda gift-cum-will in favour of Fauja Singh, who was the father of the plaintiffs. Said Fauja Singh was the nephew of Sarvshri Kharak Singh and Bhagtu. Kharak Singh died in the year 1967 and Bhagtu Died in the year 1970-71. Both of them were unmarried and they died issueless. Defendant No. 1 Smt. Aas Kaur alleges herself to be the daughter of Bhagtu. Defendants Nos. 2 and 3, namely, Ajit Singh and Baldev Singh are the sons of defendant No. 1 Aas Kaur and they alleged that Bhagtu executed a will regarding the suit land in their.favour. According to the plaintiffs, Bhagtu and Kharak never executed any will in favour of defendants Nos. 2 and 3. Defendants Nos. 3 to 5 and father of defendants Nos. 6, 7, 8 and 9 to 13 alleged that they are the nephews of Kharak Singh and Bhagtu and they propounded a gift deed in their favour alleged to have been executed by Kharak Singh and Bhagtu. The plaintiffs allege that defendant Nos. 3 to 12 are not related to Kharak Singh or Bhagtu and the latter did not execute any document in the shape of gift deed in their favour. The plain-. tiffs allege that they are the sole legal heirs of Kharak Singh and Bhagtu, being their nephews. The defendants have illegally got the land mutated in their favour at the back of the plaintiffs and the said mutation is not binding upon the rights of the plaintiffs.
3. A joint written statement was filed by defendant Nos. 1 to 3 and their stand was that Kharak Singh and Bhagtu were the original owners. The gift deed-cum-will dated 7/8-7-1932 (Exhibit P8), relied upon by the plaintiffs, is a fabricated one and not a genuine document. Kharak Singh died earlier to the death of Bhagtu and Bhagtu is stated to have died about five years prior to the filing of the written statement by the defendants in the trial Court. The estate of Kharak Singh was mutated in the name of Bhagtu, who died leaving behind Smt. Aas Kaur defendant No. 1 and Ajit Singh and Baldev Singh, defendants Nos. 2 and 3, are the sons of Smt. Aas Kaur. Bhagtu was the father of Aas Kaur and he executed a will in favour of defendant Nos. 2 and 3. According to these defendants, Kharak Singh and Bhagtu had not executed any will in favour of any other person. Relationship of the plaintiffs vis-a-vis Kharak Singh and Bhagtu was also denied. These defendants stated that the estate of Bhagtu and Kharak Singh has been rightly sanctions in favour of defendants Nos. 1 to 3. The land has also been mutated in favour of defendants Nos. 4 to 12 in the absence of defendanls Nos. 1 to 3.
4. Defendants Nos. 4 to 13 filed a separate written statement and they took the objections that earlier the suit of the plaintiffs was dismissed, so it was barred under Order 9 Rule 8, C.P.C., that the suit was not maintainable in the present form and that the plaintiffs were not in possession of the suit land. These defendants on merits admit that Bhagtu and Kharak Singh were the owners of the suit land and they had gifted two-third share of the land measuring 16 Kanals 8 Marias and the land measuring 219 Kanals 18 Marias in favour of defendant Nos. 4 and 5, and 2/5th share in favour of Tara Singh father of defendants Nos. 6, 7 and 8, and 3/5th share in favour of Amar Singh, Dalip Singh, Makhan Singh and Bakhshish Singh vide registered gift deed dated 27-6-1964. Bhagtu is alleged to have executed a registered gift deed on 23-6-1964 of the land measuring 63 Kanals 13 Marias. The suit land was allotted in lieu of the land detailed in para 1 of the written statement during the consolidation proceedings. The donees are stated to be the owners and in possession of the land. Aas Kaur was stated to be the Pichhlag daughter of Bhagtu. Defendant Nos. 2 and 3 are her sons. Aas Kaur was stated to be in possession of her share and defendant Nos. 4 to 13 are in possession of the suit land. The mutation has been rightly sanctioned in favour of defendant Nos. 4 to 13 on the basis of the registered gift deed dated 27-6-1964 (Exhibit D2).
On the pleadings of the parties, the trial Court framed at different stages :--
1. Whether Kharak Singh and Bhagtu Singh had executed a valid will in favour of the father of the plaintiffs? If so, its effect? OPP.
2. Whether Kharak Singh and Bhagat Singh were married? If so, the effect upon their legal heirs? OPP.
3. Whether Aas Kaur is the daughter of Bhagut. If so, its effect? OPD 1 to 3.
4. Whether the plaintiffs are entitled to the declaration prayed for? OPD 1 to 3.
5. Relief.
The following additional issues were framed on 25-5-1981 :--
3-A Whether the suit is barred as alleged in preliminary objection No. 1 of the amended Written statement filed by defendants Nos. 4 to 13? OPD. 4 to 13.
3-B Whether the suit is barred by time? OPD 4 to 13.
3-C Whether the suit is not maintainable in the present form as alleged in preliminary objection No. 3 of amended written statement filed by defendants No. 4 to 13? OPD 4 to 13.
4-D Whether Kharak Singh and Bhagtu had executed a valid gift deed in favour of father of the plaintiffs? Opp.
Further additional issues were framed as follows :--
3-E Whether Bhagtu had executed a valid will in favour of defendants No. 2 and 3? OPD 1 to 3.
3-F. Whether Kharak Singh and Bhagtu had executed a valid gift deed dated 27-6-64 in favour of Kartar Singh and others as alleged in para No. 1 (on merits) of the written statement filed by defendants No. 4 to 13? OPD 4 to 13.
3-G. Whether Bhagtu had executed a valid gift deed on 23-6-1964 as alleged in para No. 1 (on merits) of the written statement filed by defendants No. 4 to 13? OPD 4 to 13.
6. The parties led oral and documentary evidence in support of their case and the gist of the findings of the trial Court is that Kharak Singh and Bhagtu executed a valid will and valid gift in favour of the plaintiffs vide document (Exhibit P8) dated 7/8-7-1932. It was also held that Kharak Singh and Bhagtu were not married and as such Smt. Aas Kaur was not the daughter of Bhagtu. It was further held that the suit of the plaintiffs is not barred by limitation on account of the various preliminary objections raised by the defendants. Further it was held that Kharak Singh and Bhagtu did not execute a valid gift deed 27-6-1964 or 23-6-1964 as alleged by the defendants. It was again held by the trial Court that Bhagtu did not execute any will in favour of defendant Nos. 2 and 3 and finally the suit of the plaintiffs for declaration was decreed by the trial Court.
7. The defendants filed two sets of appeal which were disposed of by the common judgment dated 25-10-1982. Those appeals were allowed by the Additional District Judge, Gurdaspur. The findings of the first appellate Court were in this manner. It held that the gift-cum-will dated 7-7-1932 (Exhibit P8) is valid in favour of Fauja Singh father of the plaintiffs. It was also held that the gift deed (Exhibit D2) dated 27-6-1964 is valid in favour of the defendants. The plaintiffs were non-suited by the first appellate Court on the ground that the plaintiffs had not been able to prove the identity of the property. The first appellate Court endorsed the findings of the trial Court on the gift deed dated 23-6-1964 (Exhibit D3) and the will dated 21-8-1970 (Exhibit D1). In this manner the first appellate Court upheld the validity of the two documents Exhibit P8 dated 7/8-7-1932 in favour of Fauja Singh father of the plaintiffs and Exhibit D2 dated 27-6-1964 in favour of Kartar Singh and Natha Singh to the extent of 2/5th share and in favour of Tara Singh, Amar Singh, Dalip Singh, Bakhshish Singh, Ajit Singh and Makhan Singh to the extent of 3/5th share. As the plaintiffs were non-suited, this time they have filed the appeals against the judgment and decree of the first appellate Court.
8. I have heard Shri M. L. Sarin, Senior Advocate, on behalf to the appellants; Shri G. S. Dhillon, Advocate, on behalf of respondents Nos. 1 to 3, and Shri R. L. Gupta, Advocate, respondent Nos. 4 to 13, and with their assistance have gone.through the record of this case.
9. Mr. Sarin has attacked the judgment of the first appellate Court from two directions; firstly, the first appellate Court wrongly held that the plaintiffs have not been able to prove the identity of the property, and, secondly, the first appellate Court took an erroneous view in giving validity to the gift deed dated 27-6-1994 (Exhibit D2).
10. The learned counsel for the contens-ting respondents has tried to defend the judgment of the first appellate Court by urging that the first appellate Court correctly took the view that the plaintiffs had failed to establish the identity of the property. The gift-cum-will dated 7-7-1932 is not a legal and valid document arid cannot be acted upon for the benefit of the plaintiffs. No presumption under Section 90 of the Indian Evidence Act can be drawn in favour of the plaintiffs. Both the Courts below wrongly rejected the documents dated 23-6-1964 and 21-8-1970, i.e., the gift deed (Exhibit D3) and will (Exhibit D1), and according to these defendants-respondents, the suit of the palintiffs has been rightly dismissed by the first appellate Court.
11. After considering the rival conten-
tions of the parties, I am of the considered view that this appeal is to be allowed in part. The first conclusion drawn by the first appellate Court on the face of it appears to be erroneous when it held that the plaintiffs failed to prove the identity of the property and in this regard I would like to refer to para No. 1 of the amended plaint dated 17-11-1978 where the plaintiffs categorically alleged that the land mentioned in the head note of the plaint originally belonged to Kharak Singh and Bhagtu sons of Wazira, who were the owners of the suit land and this part of the case is also admitted by the defendants because they themselves claimed their right, title or interest in the property through Kharak Singh and Bhagtu on the basis of two gift deeds dated 23-6-1994 (Exhibit D3) and 27-6-1964 (Exhibit D2) and the will dated 20-8-1970 (Exhibit D1). It is the common case of the parties that the disputed property at one point of time was the ownership of Bhagtu and Kharak Singh. The first appellate Court has not rightly appreciated this aspect of the case and I, therefore, set aside the findings of the first appellate Court when it held that the plaintiffs had failed to bring on record the documentary evidence connecting the Khasra numbers mentioned in the suit land with the one gifted to them under gift-cum-will dated 7/8-7-1932 (Exhibit P8). Otherwise also no serious effort has been made by the learned counsel for the respondents to defend this erroneous finding of the first appellate Court. 1 hold that the property mentioned in the suit land came into existence in the hands of the parties by virtue of the land mentioned in the gift deed (Exhibit P8) and Kharak Singh and Bhagtu were the original owners of the entire suit land measuring 215 Kanals 12 Marias comprised in various Khasra numbers mentioned in the head note of the plaint.
12. Now I proceed to resolve the controversies between the parties in the light of the submissions raised by the learned counsel for the parties. Mr. Sarin Senior Advocate, appearing on behalf of the unsuccessful plaintiffs defended (Exhibit P8) and while attacking the gift deed dated 27-6-1964 (Exhibit D2) submitted that the gift deed (Exhibit D2) cannot be acted upon as the mgredients of Section 122 or the Transfer or Property Act have not been complied with, making the gift deed (Exhibit D2) as wholly inoperative. He aiso stated that Bhagtu and Kharak Singh were not in sound disposing mind when they allegedly executed the gift in favour of the various persons mentioned therein. He submitted that the alleged gift was never accepted by the donees and in the absence of that, no valid gift came into existence.
13. Section 122 of the Transfer of Property Act lays down that gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the life-time of the donor and while he is still capable of giving. The perusal of the Section would show that acceptance is must by or on behalf of the donee and it must be during the lifetime of the donor when he is capable of giving the property so gifted. Section 123 of the Transfer of Property Act further lays down that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of immovable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. Section 125 of the Transfer of Property Act lays down that a gift of a thing to two or more donees, of whom one does not accept it, is void as to be the interest which he would have taken had he accepted.
14. The counsel Shri M. L. Sarin wanted to build argument in order to attack Exhibit D2 that this gift was not accepted by all the donees. Therefore, they would not derive any right, title or interest under Exhibit D2. Only one Kartar Singh defendant accepted the gift. The rest of the property will revert back to the plaintiffs once they prove that they are the successors of Fauja Singh, in whose favour Kharak Singh and Bhagtu executed the document (Exhibit P8) in a valid manner. This argument of Mr. Sarin does not hold any water because Section 125 of the Transfer of Property Act would come into play only where a donee denies that he had not accepted the alleged gift. It is not the case of the defendants; rather their claim is that Bhagtu and Kharak Singh executed the gift deed (Ex. D2) in their favour and this aspect is being disputed by the plaintiffs.
15. Now I will have to see the nature of the document (Exhibit D2) which is a gift deed dated 27-6-1964 executed by Bhagtu and Kharak Singh, donating 2-5th share to Kartara and Natha; and 3/5th share jointly to Tara Singh, Amar Singh, Dalip Singh, Bakhshish Singh, Ajit Singh and Makhan Singh. This document is attested by Sander Singh and Teja Singh, signed by Kharak Singh and Bhagtu. It was presented before the Sub Registrar for registration on 27-6-1964, i.e., on the same day of the execution. The endorsement (Exhibit D2/13) at the back of the gift deed shows that it is also thumb marked by Kartar Singh one of the donees. Need not to mention that this document was produced by the defendants, whose stand categorically is that a valid gift deed had been executed in their favour by Kharak Singh and Bhagtu and they entered into the possession of the land on the basis of this gift deed.
16. Now it is to be seen in what manner both the Courts below have dealt with the document (Exhibit D2). The trial Court did not place reliance on the statement of Kharaiti Ram Scribe, who was'examined as D.W. 4 by stating that this witness did not state if Bhagtu and Kharak Singh had thumb marked the gift deed in the .absence of the attesting witnesses and that the attesting witnesses had attested the gift deed in the absence of the donors. Teja Singh, one of the attesting witnesses (D.W. 5), was ignored on the ground that he did not state if the donors had thumb marked the gift deed in the presence of the attesting witnesses. The Court also took the view that the other attesting witness Sunder Singh had not been examined by the defendants. Moreover, the trial Court remarked that when Kharak Singh and Bhagtu had already executed a gift deed-cum-will (Exhibit P8) as back as in the year 1932 in favour of Fauja Singh, father of the plaintiffs, why there is no mention of that document in Exhibit D2. The trial Court took the view that it appeared that Kharak Singh and Bhagtu were not in sound disposing mind. !n my'view the reaosns advanced by the trial Court by rejecting the document (Exhibit D2) are not sound. A careful perusal of the evidence would show that this gift deed (Exhibit D2) has been duly proved in terms of Section 122 of the Transfer of Property Act and the reasons given by the first appellate Court are more cogent and convincing, which are liable to be accepted. The statements of Kharaiti Lal and Teja Singh have been discussed para No. 8 of the judgment of the first appellate Court. I have also perused the statements of these witnesses independently and the evidence is on the record that both the donors thumb marked the gift deed (Exhibit D2). The evidence is also on the record that after the execution of the gift deed the possession was given to the donees. This document is a registered one. Vide Exhibit P8 dated 7-7-1932 Kharak Singh and Bhagtu gifted 1/3rd share in the suit land to Fauja Singh, father of the plaintiffs, and 2/3rd share was retained by them. It is a matter of common knowledge that a will operates after the death of the testator. Kharak Singh and Bhagtu could deal with their 2/3rd share in the property in any manner they liked, after the registration of the document, which was handed over to the donees and which singnifies the delivery of the possession to the donees, who had accepted the gift during the life time of the donors when they were competent to dispose of their 2/3rd share. From the statement of D.W. 5 Teja Singh it is clear that the donees were put into possession after the execution of the gift deed. The first appellate Court has correctly applied law as reported in Tirath v. Manmohan Singh, AIR 1981 Punj & Har 174, in order to hold that gift deed (Exhibit D2) was a validly executed document and the gift was accepted by the donees. Summing up, I rejected and repel all the arguments raised by Mr. Sarin when he tried to attack the gift deed (Exhibit D2) dated 27-6-1964. At the cost of repetition, it may be stated that Mr. Sarin has rightly pointed out that the first appellate Court went up in error by holding that the plaintiffs remained unsuccessful in proving the identity of the property.
17. Now I proceed further to deal with the arguments raised by the learned counsel for the respondents when they gave challenge to the gift-cum-will dated 7-7-1932 (Exhibit P8) in order to non-suit the plaintiffs. It may be mentioned at the first instance that both the Courts below gave the findings in favour of' the plaintiffs that Kharak Singh and Bhagtu executed a valid gift deed-will in favour of Fauja Singh the gift was to the extent of 1/3rd share in the estate of Kharak Singh and Bhagtu and the will was to the extent of 2/3rd share. As earlier said, this document is dated 7-7-1932 and has been produced by the plaintiffs during the trial.
18. The learned counsel submitted that both the Courts below took an erroneous view to draw presumption under Section 90 of the Indian Evidence Act. The execution of this document has not been proved. The presumption, if any, can be drawn with regard to the execution or attestation but not with regard to the contents of the documents. In support of his contention Mr. R. L. Gupta, learned counsel appearing on behalf of respondents Nos. 4 to 13, has referred to the pleading of the plaintiffs and submitted that the plainiffs did not make a specific mentioned in their plaint about the date of the execution of the gift-cum-will, who were the attesting witnesses, who were the scribe, and as such the defendants have been able to deny and rebut the case of the plaintiffs regarding document (Exhibit PS). It was also pleaded that the will (Exhibit D1) should be acted upon and in this manner the plaintiffs do not get any right, title or interest in the property. 1 will also deal with the case law cited by the learned counsel appearing for the defendants-respondents in the subsequent portion to this judgment and first of all I may say that the arguments raised by the learned counsel for the respondents have no force. It is a settled law that evidence is not supposed to be Pleaded in the pleadings, which in the present case have been drafted at the level of the Muffassal, yet the case of the plaintiffs in para No. 2 of the plaint is categorical when they stated that Kharak Singh and Bhagtu sons of Wazira made gift in favour of their father Fauja Singh, who was the nephew of those persons. Said Fauja Singh took the possession of the gifted land during the lifetime of the donors, who executed the will-cum-gift deed by one document. In this manner Fauja Singh, father of the plaintiffs became the owner of the suit land.
19. Section 90 of the Indian Evidence Act lays down as follows :--
"90. Presumption as to documents thirty years old. -
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of the such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.
Explanation. -- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable."
If the interpretation as given by the learned counsel appearing for the defendants-respondents is accepted by this Court, the very purpose of Section 90 of the Indian Evidence Act would be frustrated. This section has been incorporated by the Legislature by way of necessity. The trial Court has rightly admitted this document into evidence irrespective of the fact that the attesting witnesses have not been examined by the plaintiffs. Both the attesting witnesses of this document are dead; so much so the scribe is also dead. I cannot lose sight of the fact that it is a registered document. I do not subscribe to the argument raised by the learned counsel for the respondents that no presumption can be drawn with regard to the due registration of the document, which should be proved independently. Being a registered document coming from the custody of a proper person and moreover the document is 30 years old, it is the presumptive evidence of its due execution and attestation. In Munnalal v. Mst. Kashibai, AIR 1947 Privy Council 15, it has been laid down that actual execution and attestation of a will more than thirty years old and produced from proper custody can be presumed under Section 90 of the Indian Evidence Act. It was further observed that a party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, Indian Evidence Act, since a will cannot be said to be "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. In Mt. Nidh Kaur v. Gian Singh, AIR 1938 Lahore 55, it was further held that where a presumption under Section 90 of the Indian Evidence Act has been raised by the trial Court, a Court of Appeal will be slow to interfere with the exercise of its discretion. A reading of Exhibit P8 would show that there is a clear recital therein made by the donors/testators that they were happy with the services rendered by Fauja Singh, for-which reason they were executing the will to the extent of 2/3rd share and gift to the extent of 1/3rd share.
20. Mr. R. L. Gupta, learned counsel appearing for respondents Nos. 4 to 13, has placed reliance on Mohinuddin v. President, Municipal Committee, Khargone, AIR 1993 Madh Pra 5; Ghurahu v. Sheo Ratan, AIR 1981 Allahabad 3; Kempamma v. Kalamma, AIR 1992 Karnataka 282 and Rangu Vilhoba v. Rambha Dina, AIR 1967 Bombay 382 and submitted that presumption under Section 90 of the Indian Evidence Act cannot be extended to the contents of the document which has to be proved independently by the propounder of the gift and the will. I have the occasion to go through all the case law relied by the learned counsel appearing for" the respondents. These authorities are on their own facts and are not helpful to the respondents' counsel.
21. In Mohinuddin's case (AIR 1993 Madh Pra 5) (supra) sale of the piece of land was stated to have taken place for an amount less than Rs. 100/-. In these circumstances the transfer could be made either by registered instrument or by delivery of the piece of land. There was no registered instrument and there was nothing to show that the plaintiffs' father or the plaintiffs took possession of the land by constructing a wall or fencing around the same and in these circumstances transaction in their favour could not be proved. In the present case the plaintiffs have specifically pleaded the will-cum-gift (Ex. P8) executed by Bhagtu and Kharak Singh and I have already highlighted the material pleadings of the plaintiffs. The document could be rightly acted upon as it has come from proper custody. In Ghurahu's case (AIR 1981 All 3) (supra) the entire dispute was whether Sughar had one son or two sons and to determine this issue reliance was placed on two old mortgages in order to prove that aspect of the case. Some directions were passed to produce the original documents and it transpired that copy of the document filed by one of the parties was incorrect. In this circumtance, Allahabad High Court held that the presumption under Section 90 of the Indian Evidence Act cannot be extended to the contents of that document. Here is the present case the original document (Ex. P8) is on the record and it complies with all the essential ingredients of Section 90 of the Evidence Act regarding which I have already made a detailed discussion in the earlier portion of this judgment. In Rangu Vithoba's case (AIR 1967 Bom 382) (supra) the pleadings of the parties were not proper and it was held that before any presumption under S. 90 of the Evidence Act is to be drawn, there must be proper pleadings as to execution, attestation and it must be averred that it was the last will of the testator. This authority is distinguishable on facts. Similarly, Kempamma's case (AIR 1992 Kant 282) (supra) cannot be followed for the reasons stated above.
22. Resultantly, I affirm the findings' of the Courts below that the will-cum-gift (Exhibit P8) is valid and this document gives valid title to Fauja Singh to the extent of I/3rd share in the suit property. The plaintiffs are admittedly the sons of Fauja Singh and they derived the right, title and interest of Fauja Singh in equal shares and as such are entitled to a joint decree of possession to the extent of 1/3rd share in the entire suit land as described in the head note of the plaint.
23. This leads me to discuss the last aspect of the case regarding the defendants when they set up one gift deed dated 23-6-1964 (Exhibit D3) allegedly executed by Bhagtu in favour of Smt. Aas Kaur. This document has not been duly proved. Defendant No. 1 has neither examined the scribe nor any of the attesting witnesses and this aspect fo the case was also not pressed by the contesting defendants before the first appellate Court as remarked by it is para No. 7 of the judgment.
24. So far as the will (Exhibit Dl) dated 21-8-1970 is concerned, no weight can be attached to this document as the propounder of the will has failed to remove the suspcious circumstances surrounding it as required under the law. The will is dated 21-8-1970 allegedly executed by Bhagtu in favour of Ajit Singh and Baldev Singh defendants, who were the sons of Aas Kaur. The contesting defendants examined two witnesses, nmely, Major Anand Singh (D. W. 1) and Iqbal Singh Chahal (D. W. 2), Deceased Bhagtu belonged to village Shahur. Major Anand Singh belonged to village Dhapai, while Mr. Iqbal Singh Chahal is a practicing lawyer at Gurdaspur. The will was allegedly executed at Gurdaspur, which is a District Headquarter and in all probabilities if Bhagtu had come to Gurdaspur for the execution of a valid will, there was no defect on his part to go to the office of the Sub-Registrar for the registration of the will though under the law its registration is not compulsory. Nevertheless it is proved on the record that earlier Bhagtu had been approaching the office of the Sub-Registrar when he along with Kharak Singh executed the document (Exhibit P8) and gift deed (Exhibit D2). Major Anand Singh D. W. admits that the was not related to Bhagat Singh (Bhagtu) and he never visited the village of the deceased. In these circumstances what was the necessity on the part of Bhagtu to ask such witnesses to attest the will, who were not even known earlier to him. Major Anand Singh deposed that the testator of the will was taken before a Magistrate, who verified from Bhagtu about his sound disposing mind, but this witness is not in a position to tell whether the Magistrate made any endorsement on the back of the will or not. The fundamental law on the execution of the will is that the onus is upon the propo-under to remove all possible suspicious circumstances surrounding the will but in this case the oral evidence led by the propouhder is too shaky, inconsislent in nature and improbable, which cannot be believed. Both the Courts below have rightly rejected the oral testimony of D.W. 1 and D.W. 2 Major Anand Singh and Mr. Iqbal Singh Chahal. In other words, under the document (exhibit D1) the alleged beneficiaries, do not derive any right, title or interest.
25. The resume of the above discussions is that the will-cum-gift deed (exhibit P8) is held to be a valid one. Since Kharak Singh and Bhagtu during their life time executed gift deed (exhibit D2), therefore, the plaintiffs would get only l/3rd share in the suit property in equal shares. The rest of the suit land will go to the donees as per their shares mentioned in the gift deed dated 27-6-1964.
26. Resultantly, both the appeals are partly allowed. The judgment and decree of the Courts below are modified and a decree for joint possession to the extent of 1/3rd share in equal shares is passed in favour of the plaintiffs-appellants Sarvshri Kirpal Singh and Rachpal Singh and their suit for declaration to the effect that they are the joint owners to the extent of 1/3rd share in the land measuring 215 Kanals 12 Marias comprised in the head note of the plaint situated in village Shur, Tehsil and District Gurdaspur, is hereby decreed leaving the parties to bear their own costs.
27. Appeals party allowed.